Shapiro files SCOTUS brief defending Wolf’s business shutdowns

Attorney General Josh Shapiro asked for the U.S. Supreme Court to toss a lawsuit challenging Gov. Tom Wolf’s coronavirus-inspired business shutdowns.

“The Pennsylvania Supreme Court applied well-established principles to conclude that the Governor had that authority. Applicants do not challenge the principles themselves; they merely disagree with that court’s conclusions,” Shapiro wrote in the brief filed Monday.

The legal challenge was brought in late March after Wolf ordered all non-“life-sustaining” businesses to close to prevent the spread of COVID-19.

The plaintiffs include a real estate agent, a golf course, a laundromat and a timber company, as well as a suburban Pittsburgh GOP state House hopeful. 

They seek to end enforcement of Wolf’s order, as it constitutes “the complete destruction of the property rights of vast numbers of businesses” and threatens their 1st Amendment right to free speech and free assembly.

The state Supreme Court threw out the challenge in April, but Supreme Court Justice Samuel Alito agreed to hear an emergency appeal and ordered that Wolf respond to the challenge.

In the counter filing, Shapiro argued that the legal challenge “is devoid of any reference to this Court’s legal standards for granting relief,” “premised upon a misapprehension of this Court’s criteria” for review, and “reflects an indifference towards the more than 60,000 lives lost to the COVID-19 pandemic so far.”

Shapiro also closed the filing with a broad defense of state’s police powers during the public health emergency, arguing that “exercising those powers is the most fundamental of public policies.”

“The Court has been loath to enter into such matters,” Shapiro said. “It should not do so here.”

U.S. Attorney General Bill Barr expressed interest last month in checking states that imposed draconian quarantine measures to stop the spread of COVID-19.

According to polling, Wolf’s response to the virus has been popular. A Fox News poll released last week found that 69 percent of Pennsylvanians approved of Wolf’s actions.

It has still sparked political debate in Harrisburg, where the Republican-controlled General Assembly has advanced a number of bills to expand which business that can remain open throughout Wolf’s shutdown order.

Wolf recently began the gradual reopening of the state, letting 24 counties with about an eighth of the state’s population loosen social distancing — including reopening retail and allowing golfing to resume — even as prohibitions on large gatherings, restaurant dining rooms or hair cuts remain.

In a counter filing Monday, Marc Scaringi, attorney for the petitioners, acknowledged the policy changes but continued to ask for a stay on Wolf’s public health decrees.

“People and businesses can self-regulate, as they have done for millennia, in the face of a viral illness, without resort to massive, statewide shutdowns and lockdowns of businesses and persons done apparently at the whim of the Executive and based upon scientific projections which were staggeringly wrong,” Scaringi wrote.

The suit is awaiting a decision by Alito, who could issue a stay. The Supreme Court could also review the case as a whole.